A.P Chowdhri, J.:— Tar Singh alias Avtar Singh, 65, was tried by the learned Sessions Judge, Faridkot, under Section 302 of the Indian Penal Code (For short called ‘the Code’) and Section 27 of the Arms Act, 1959. He was convicted under both counts and sentenced to life imprisonment and a fine of Rs. 1500/- under Section 302 of the Code. In default of payment of fine, he was further sentenced to rigorous imprisonment for one year. He was not awarded any sentence insofar as the offence under the second count is concerned in view of the fact that he has been sentenced to life imprisonment under Section 302 of the Code.

2. Surinder Singh (PW 4) son of the deceased gave the following account of the occurrence. On 27-5-1987 he along with his father Mukhtiar Singh deceased and uncle Mal Singh were coming from the grain market to their house after leaving wheat in the grain market to be sold. At about 7.30 p.m they reached near the platform of the well of Harijans where the accused was sitting with his gun. At that time, Mukhtiar Singh deceased was ahead of Surinder Singh by about six karams. The accused asked Mukhtiar Singh as to why he had refused to give him dry fodder when the former had demanded from him adding that he would teach him a lesson. The accused then fired a shot from his gun hitting Mukhtiar Singh on his abdomen. He fell down. The accused ran away with the gun.

3. The injured was removed by a tractor trolly first to his house and then to the hospital by Mal Singh. Surinder Singh (PW 4), however, proceeded towards police station. On the way he met Sub Inspector Mohinder Singh at village Panjgrain where he made statement which was concluded at 10.00 p.m on the basis ofthe said statement, formal F.I.R was entered at Police Station, Baghapurana, 27 Kms. away at 11.00 p.m A case under Section 307 of the Code and 27 of the Arms Act was registered.

4. Sub Inspector Mohinder Singh (PW 7) accompanied Surinder Singh to the spot. He recovered empty cartridge case Exhibit P-1 from the place of occurrence. He recovered blood-stained earth and prepared rough site plan.

5. The injured was brought to the Primary Health Centre, Bajakhana. Dr. Devinder Mittal (PW 2) gave him first aid and referred him to Medical College Faridkot. He was then taken to Civil Hospital, Faridkot, where Dr. S.P Singh (PW 6) and Dr. K.K Aggarwal examined him. Mukhtiar Singh died at about 4.00 a.m On 28-5-1987. Sub Inspector Mohinder Singh (PW 7) prepared inquest and sent the dead body for post-mortem examination. The offence under Section 302 of the Code was added. The accused was arrested on ???4-6-1987. Licence Exhibit P-2 was produced by him. At his instance, gun Exhibit P-3 was recovered along with five cartridges. The gun was seized.

6. At the trial the prosecution examined seven witnesses. Dr. S.P Singh (PW 6) along with Dr. K.K Aggarwal had examined Mukhtiar Singh in Civil Hospital, Faridkot. He noted the following injuries on his persons:—

“Multiple lacerated wounds present in the right side of the abdomen in an area of 15 cms. × 13 cms., 2 cms from the mid-line. The central lacerated wound measuring 3 cms × 3 cms. There were two lacerated wounds measuring 1.5 cm. × 1.5 cm. each, present below the bigger central wound. Rest 40 to 50 small lacerated wounds measuring about 0.5 cm. in diameter each were present Page: 380around the bigger central wound. Margings were inverted. Bleeding was present. Three pellets were recovered from the wound. Corresponding holes were present in the kurta which was blood-stained.”

7. The probable duration was within six hours and the injuries had been caused by a fire-arm. He handed over to the police a vial containing three pellets removed from the person of the injured. In cross-examination, he stated that the distance of the injured from the assailant at the time of firing could be about 5 yards or more. He could not say whether the assailant as well as the victim were at the same level or different level at the time of firing. All the wounds were circular. Dr. K.K Aggarwal (PW 1), conducted post mortem examination and described the injuries in the following words:—

“On removal of bandage, a linear stitched wound 28 cms in length present on right side of abdomen just lateral from midline. Another stitched wound with seven stitches started from middle portion and went towards right lumber region. The first stitched wound had 25 stitches. Three drainage tubes were present over pubic region, middle portion of linear stitched wound and one on right lumber region. Multiple small lacerated wounds were present over right side of abdomen above and below the stitched wound measuring about 0.5 cm. in diameter. 25 small wounds were visible and rest were merged with stitched wounds. Margins were inverted. Clotted blood was present over wound. On dissection, slight clotted blood was present in right abdominal muscles. On further dissection, about 100 ccs. of fluid blood was present in abdominal cavity on right side. One small pellet had been recovered from the right abdominal cavity. Slight clotted blood was present over the mesentry. There were multiple stitches present at various sites of small intestines.

Rest of the organs of the body were normal and the lungs were congested. The right side of heart contained slight blood and left side was empty. The stomach was empty. Bladder contained about 50 ccs of urine.

In his opinion, the cause of death in this case was shock and haemorrhage as a result of injury to small intestines and mesentry due to fire arm. It was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature.”

8. He stated that if a shot is fired from a distance of three to six feet there will be tattooing around the wounds. The prosecution put forward Surinder Singh (PW 4) and Mal Singh (PW 5) as eye-witnesses besides the Investigating Officer. The plea of the accused under Section 313 of the Code of Criminal Procedure was one of denial. He stated that Avtar Singh, brother of the deceased, had contested election of Sarpanch against one Thana Singh about four years prior to the occurrence. As such supporter the accused had exchanged abuses with Mai Singh and Surinder Singh PWs and had not been on speaking terms with them since then. He had been taken into custody on the day following the occurrence and his licensed gun had been seized by the police. He produced no evidence in defence.

9. On an evaluation of the evidence, the learned Sessions Judge, Farikdot, accepted the eye-witness account and convicted and sentenced the accused as aforesaid. Hence, this appeal.

10. Sh. J.S Mann, learned counsel for the appellant, contended that Surinder Singh (PW 4) and Mal Singh (PW 5) had not witnessed the occurrence and their statements cannot be acted upon.

Page: 38111. Elaborating, learned counsel pointed out that it was highly improbable that both Surinder Singh as well as Mal Singh should have come back with the deceased leaving the wheat unattended in the grain market. The occurrence took place inside the vill and it must have been seen by a number of persons and the presecution had not been able to produce any independent witness in support of this case. In a situation like the present one, it was argued, the Court could not safely rely on the testimony of highly interested witnesses like son and brother of the deceased. Learned counsel also submitted that the accused had an altercation with both the witnesses. They were not on speaking terms with each other and thus the PWs were inimical to the appellant. The learned counsel also argued that there was conflict in the ocular testimony and the medical evidence as to the distance from which the shot was fired and this was sufficient to render the ocular account open to doubt. Learned counsel also emphasised that admittedly neither of the PWs informed any one in the village about the occurrence and it was highly unnatural that the son should leave his injured father to his fate and proceed to lodge a report with the police. It was also submitted that, according to the prosecution case, the shot had been fired from the platform which was about 1-½ feet higher than the ground level and ordinarily the wounds of entry would have been oval though in the present case they were found to be circular as admitted by Dr. S.P Singh (PW 6) in cross-examination.

12. The contention of learned counsel appearing for the State, on the other hand, is that the FIR was lodged without any delay. Necessary details were given therein. No enmity of the P.Ws against the accused could be established.

13. We have given our anxious consideration to the respective contentions of the learned counsel.

14. We do not find anything inherently improbable in the two witnesses accompanying the deceased way back from the grain market. It is common knowledge that produce to be sold is left with the grain dealer especially if it has become late and the auctions for the day are over. The fact that both brother and son should have accompanied the deceased is borne out by the fact that more than one person are required to unload the grain which is carried either by a bullock-cart or a tractor-trolly to the grain market. It is settled law that the evidence of a person cannot be discarded only on the ground of his close relationship with the victim of crime. In fact, the close relation will be the last person to leave out the real culprit. It is well recognised that substitution of the real culprit by a stranger is rare, if not, non-existent. Unless ipsi dixit of the accused in his statement under Section 313 of the Code of Criminal Procedure is accepted that he had exchanged abuses with Mal Singh and Surinder Singh, there is nothing on the record to show that, in fact, the PWs. were inimically disposed towards him. There is no basis for the argument that because of the suggested enmity there was occasion for the deceased in asking for dry fodder from the deceased and being rebuffed by him. The cross-examination of Surinder Singh (PW 4) and Mal Singh (PW 5) is conspicuous by the absence of distance from which the accused fired at the deceased. Faced with this difficulty, the learned counsel invited our attention to the site plan prepared by the draftsman. Surinder Singh (PW 4) denied having pointed out the spot from where the gun was fired and the deceased who was hit by the gun fire. Moreover, the site plan has been prepared on scale and applying that scale the distance between the two points shown in the site plan is more than 10 feet. Dr. K.K Aggarwal (PW1) deposed about the likelihood of tatooing being found if the shot was fired from a distance Page: 382of three to six feet. The gun fire having been made from a distance of about 10 feet the absence of tatooing is consistent with the presecution case and there is no inconsistency in medical evidence and the ocular account. With regard to the second part of the submissions that the wound of entry would have been oval, no material has been placed on record nor elicited in cross-examination that the gun was fired from a certain angle which would have caused shaped wounds of entry. In the absence of any effectual basis made out on record, the argument is altogether untenable. No doubt, Surinder Singh (PW 4) admitted that 10-12 persons were sitting near the place of occurrence at that time. Their non-production is no infirmity in the prosecution case. People in general are averse to becoming witnesses in serious crimes and in a situation like this the clear duty of the Court is to evaluate the evidence which is actually produced before it rather than enter upon a speculation of what evidence could have been produced by the prosecution. Reference in this connection may be made to State of Uttar Pradesh v. Suresh, (1981) 3 SCC 635 : AIR 1982 SC 1076 and Appabhai v. State of Gujarat, 1988 Supp SCC 241 : AIR 1988 S.C 696. No fault can be found with Surinder Singh and Mal Singh having not gone to any one in the village to nanate the occurrence before going to the police nor can it be criticised that he left his father to his fate and rushed to lodge the report with the police, the criticism would have been that when there were others like Mai Singh to attend to the injured why Surinder Singh did not proceed to inform the police. In any case, there is no set pattern, according to which, a witness is expected to react when faced with such a situation. We do not find any unnatural conduct on the part of the witnesses so as to render their testimony open to any doubt. We, therefore, agree with the trial court in the evaluation of the testimony of the two eye-witnesses.

15. Learned counsel for the appellant also contended that the offence, if any, was one under Section 304 Part-I of the Code. He submitted that there was no serious enmity between the parties The gun was fired from a distance. The shot hit the deceased in the lower part of the abdomen. The accused did not repeat the fire and in the totality of the facts and circumstances intention to murder could not be inferred.

16. There can be no denying the fact that there was no serious enmity between the parties. Assuming the prosecution version with regard to the alleged motive to be true, it is difficult to swallow that for mere denial on the part of the deceased to give fodder to the accused sometime in the past the accused would shoot him with a gun. It is nobody's case that the accused had seen the deceased going to the grain market and he knew that the deceased would be returning from that way and at a particular time. In all probability, something appears to have happened at the spur of the moment which annoyed the accused and be shot the deceased.

17. A wide spread impression seems to exist that use of a fire-arm resulting in death cannot but disclose an offence under Section 300 Thirdly punishable under Section 302 of the Code. This is far from being true. This very question arose in Jagat Singh v. State Of Haryana, (1977) 1 SCC 225. That case also involved death of a person by a fire arm. In the facts and circumstances of that case, it was held that the offence disclosed was one under Section 304 Part-I and not under Section 302 of the Code. There is thus no legal difficulty in altering the conviction.

18. On a careful consideration of the facts and circumstances of the the case and for the reasons hereinabove discussed, we set aside the conviction and sentence under Section 302 of the Code and instead convict the appellant under Section 304 Part-I of the Code and sentenced him to seven years rigorous imprisonment.